Phillip Eric Alonzo Duckett v. United States , 410 F.2d 1004 ( 1969 )

TAMM, Circuit Judge:

On the 21st day of August, 1966, a young lady was carnally known and abused by an intruder in the apartment where she was staying. On the 23rd day of October, 1967, one Phillip Duckett answered to a jury for those crimes. On the 15th day of December, 1967, Duckett was adjudged guilty and committed to a term of imprisonment by the district court. On the 8th day of January, 1968, an appeal was noted. Today we decide this case.

The facts pertinent to the disposition of the appeal are that on the evening in question the complainant was staying at her sister’s apartment while on a weekend visit. She had retired at around 10:00 P.M. and thereafter was awakened by the movement of a figure of a man on top of her. This man told her to be quiet or he would kill her. Thereafter, while brandishing a knife, he had intercourse with the complainant. They then left the bedroom and went into the living area. Shortly thereafter, Clarice Jackson, the older sister of the complainant came in, a conversation ensued and the appellant left. After his departure Clarice Jackson inquired of her sister concerning certain bruises on the young girl’s neck. From that inquiry the details of her unfortunate experience unfolded. Upon the complainant’s sworn petition, Duckett was arrested and charged with the crimes of housebreaking and carnal knowledge.¹

At trial there was expert testimony with regard to medical evidence concerning recent sexual penetration. The complainant’s sister then testified to the occurrence based upon what she saw and what she was told by her sister. The complainant then testified concerning the facts; her testimony that she was fifteen years old at the time of the event and recital of her birthdate was not challenged. She, as well as Clarice, identified the appellant in open court. Thereupon, the government rested. The appellant took the stand, admitted that he had sexual intercourse with the complainant, but could not, however, remember the details.

The defense was based on insanity. Two doctors testified on that issue. One was of the opinion that the appellant was suffering from a mental disease (socio-pathic personality); the other found no evidence of any mental disorder. When all the evidence was in, the appropriate motions were made and denied, the jury instructed on the law, and the case submitted for their determination. That determination was adverse, in all respects, to the appellant and thus this appeal.

Upon a complete review of the full record of this case we find that all the essential elements of the crime of carnal knowledge were proven beyond a reasonable doubt. Upon the testimony of the complainant it was shown that she was under the age of sixteen years; upon the testimony of the complainant and the admission of the appellant it was shown that he had carnally known and abused her. This testimony was sufficiently corroborated by medical evidence and the testimony of Clarice Jackson. Therefore, under the doctrine of Kidwell v. United States, 38 App.D.C. 566 (1912), Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633 (1942), cert. denied 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943); Hines v. United States, 95 U.S.App.D.C. 118, 220 F.2d 381 (1955), we choose not to disturb the verdict on this count.

As to the housebreaking count we find that although it is not completely clear that the evidence of intent to commit a crime was sufficient in law to make out a prima facie case of housebreaking, this possible error was avoided by the imposition of concurrent sentences and thus no resulting prejudice. See Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) and Moore v. United States, 117 U.S.App. D.C. 376, 330 F.2d 842 (1964).

We have considered the other points raised on appeal and find them lacking in merit. Accordingly, we affirm.

Affirmed.

1 . 22 D.C.Code § 1801 (1967); 22 D.C.Code § 2801 (1967).